COUNTIES ‑- ROADS ‑- ACQUISITION OF RIGHT OF WAY ‑- PARKING SPACE

COUNTIES ‑- ROADS ‑- ACQUISITION OF RIGHT OF WAY ‑- PARKING SPACE.

In acquiring right of way for a county road, a county may acquire a strip of land sufficient in width to provide an adjacent and contiguous parking area to relieve anticipated traffic congestion along that particular portion of the roadway.

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                                                                    April 6, 1966

Honorable E. R. Whitmore, Jr.
Prosecuting Attorney
Chelan County Court House
Wenatchee, Washington

                                                                                                                Cite as:  AGO 65-66 No. 82

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question relating to the authority of a county to provide parking facilities.  As clarified in a telephone conversation and subsequent correspondence with your office, your question is paraphrased as follows:

            In acquiring right of way for a county road, may a county acquire a strip of land sufficient in width to provide an adjacent and contiguous parking area, to relieve anticipated traffic congestion along that particular portion of the roadway?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            It is elementary that counties have only such powers as have been granted to them, expressly or by necessary implication, by the constitution and statutes of the state.  State ex rel. Wauconda Inv. Co. v. Superior Court, 68 Wash. 660, 124 Pac. 127 (1912).

            Counties of course have the statutory power to acquire land for county road purposes.  RCW 36.75.040.  Subdivision (4) of that statute further authorizes boards of county commissioners to "perform all acts necessary and proper for the administration of the county roads of such county as by law provided."

             [[Orig. Op. Page 2]]

            One of the powers expressly granted to boards of county commissioners in the construction of county roads is the acquisition of necessary rights of way for that purpose.  See RCW 36.85.010.  In connection with the width of such rights of way, RCW 36.86.010 provides as follows:

            "From and after April 1, 1937, the width of thirty feet on each side of the center line of county roads, exclusive of such additional width as may be required for cuts and fills, is the necessary and proper right-of-way width for county roads,unless the board of county commissioners, shall, in any instance, adopt and designate a different width.  This shall not be construed to require the acquisition of increased right-of-way for any county road already established and the right-of-way for which has been secured."  (Emphasis supplied.)

            Therefore, your inquiry resolves itself into a question as to the factors which may be taken into account in determining the necessary width of the right of way to be acquired by the county.  Specifically, may these factors include a recognition of necessity for parking spaces along one or both sides of the contemplated roadway?

            It is generally held that the designation of parking spaces in streets is within the power of a city to regulate streets and traffic on them.  See, 7 McQuillin, Municipal Corporations, § 24.645.  The author further says:

            ". . . The right to furnish parking space is a necessary adjunct to the right to regulate traffic. . . ."

            See, also,In re Auburn, 65 Wn.2d 560, 398 P.2d 723 (1965).

            In this state, the powers of counties and cities with respect to the regulation of traffic have a common basis; i.e., the police power conferred upon both classes of municipalities by the same constitutional provision, and recognized in the various statutes applicable to them.1/

             [[Orig. Op. Page 3]]

            The nature and extent of this power have frequently been amplified by the courts.  The police power includes such matters as the power to enact regulations regarding garbage disposal (Smith v. Spokane, 55 Wash. 219, 104 Pac. 249 (1909)); the power to enact minimum wage and hour laws on public works (Malette v. Spokane, 77 Wash. 205, 137 Pac. 496 (1913)); the power to zone (State ex rel. Miller v. Cain, 40 Wn.2d 216, 242 P.2d 505 (1952)); the power to regulate passenger buses on city streets (Evergreen Trailways, Inc. v. Renton, 38 Wn.2d 82, 228 P.2d 119 (1951)); the power to enact an ordinance restricting and regulating the parking of vehicles on public streets (Sandona v. Cle Elum, 37 Wn.2d 831, 226 P.2d 889 (1951)); and the power to install parking meters as a restriction on andregulation of parking (Kimmel v. Spokane, 7 Wn.2d 372, 109 P.2d 1069 (1941)).  See, also,Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958).

            Within its limits, municipal police power is as broad and extensive as the police power possessed by the legislature.  Seattle v. Ross, 54 Wn.2d 655, 344 P.2d 216 (1959).

            Thus, in summary, the police power possessed by cities and counties is broad and clearly comprehends the regulation of parking.

             [[Orig. Op. Page 4]]

            Although we find no statute expressly authorizing counties to furnish space for parking (chapter 24, § 1, Laws of 1965, merely authorizes certain counties and cities to cooperate in order to supply parking for their employees and others), we believe the power to furnish such parking space inheres in the broad grant of the police power found in RCW 36.32.120 (7).  This statute restricts a county's exercise of its police power in only two respects; namely

            (1) No county may exercise its police power outside its territorial limits, (see,Brown v. Cle Elum, 145 Wash. 588, 261 Pac. 112 (1927)) and (2) no county may enact an ordinance or resolution in conflict with state law (see,Winkenwerder v. Yakima, supra.)

            Your question suggests no reason why the provision of public parking space should violate either restriction.  Moreover, we should observe that a county without the power to furnish such parking space may find it exceedingly difficult, if not impossible, to achieve the objective of a grant of power which comprehends the regulation of vehicular traffic and parking.

            Therefore, in our opinion, a county may acquire the right of way for a county road sufficient in width to provide adjacent and contiguous parking space along the roadway in order to prevent traffic congestion in an area where such need is reasonably anticipated.

            In thus concluding, we should point out the necessary distinction between what is commonly referred to as "off street parking" and provision for parking space along the curb or shoulder of the road, immediately adjacent to the roadway.  We are not required to consider at this time the question of the legal authority of a county to provide off street parking, under its general police power, in the absence of a statute like that construed in In re Auburn, supra.  However, it is our opinion that a county has authority to provide necessary parking space along its roadway for the purpose of relieving anticipated traffic congestion.  The latter is clearly within the constitutional police power of a county, to the extent that its primary purpose is public and that any benefit to merchants or property owners would be merely incidental.  See,In re Auburn, supra.

             [[Orig. Op. Page 5]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General